From the point of view of creating a favorable investment climate, the conclusion of bilateral agreements on the promotion and mutual protection of investments (hereinafter referred to as the Agreements) is of great importance. They fix the key principles, standards and norms of bilateral investment cooperation, providing for the countries that signed them a stable liberal investment regime. The number of such agreements in the world is steadily increasing: from 181 in 1980 to 1856 agreements at the beginning of 2000.

Bilateral agreements Russian Federation

By 2001, Russia had concluded 53 such agreements, including 12 "inherited" from the USSR. 24 Agreements have been signed with OECD countries, 24 - with developing countries and countries with economies in transition, and five Agreements - with CIS countries. 38 of the Agreements have been ratified and entered into force (see Appendix H)89. The role of such agreements is primarily to create favorable conditions for FDI in a situation where the domestic regulatory framework for regulating FDI suffers from serious shortcomings.

They are of particular importance in terms of attracting small and medium-sized investors, whose interests, as a rule, cannot receive adequate protection through the mechanism of concluding agreements between the investor and the government of the host country. At the same time, as world experience shows, the Agreements are not able to fully compensate for the influence of such factors that determine the low investment attractiveness of the country as political risks, exchange rate instability, limited market capacity and low potential for economic growth.

The standard draft Agreement was approved by Decree of the Government of the Russian Federation No. 395 "On the conclusion of agreements between the Government of the Russian Federation and the governments of foreign states on the encouragement and mutual protection of capital investments" dated June 1, 1992. It became the basis for negotiating and concluding new agreements in subsequent years. Decree of the Government of the Russian Federation No. 625 of June 26, 1995 amended the Decree of June 1, 1992 and authorized the Ministry of Economy of the Russian Federation to be the lead organization in the negotiations on the conclusion of the Agreements. The Ministry has now taken over the baton. economic policy and trade of the Russian Federation.

The need to improve the Russian practice of developing and concluding bilateral agreements on the promotion and mutual protection of investments

The agreements concluded by the USSR and the Russian Federation are developed in accordance with international legal norms and are mainly based on standard models approved by the governments of the USSR and the Russian Federation. At the same time, since June 1992, when the last Model Agreement was approved, great changes have taken place both on the world stage and in Russia, making it necessary to improve the Russian practice of developing and concluding Agreements. The most important changes include:

changes in the international practice of concluding agreements in connection with the widely implemented policy of liberalizing the attraction of foreign investment;

signing by Russia and (or) its intention to join in the near future a number of multilateral international economic organizations and agreements that affect the formation of the terms of the Agreements;

the need of the countries - members of the CIS in the implementation of measures to create a single investment space;

identification in practice of shortcomings, shortcomings and omissions of the current Model Agreement and the Agreements themselves (inconsistency with the model provisions, the presence of outdated provisions, insufficient consideration of the specifics of counterparty countries, lack of a well-thought-out policy when choosing new counterparty countries);

development of Russian legislation on investment issues, including issues of foreign investment, which has not yet been reflected in the Agreements.

Let us illustrate how changes in Russian legislation have affected the adopted bilateral international agreements. The last Model Agreement was drawn up taking into account the provisions of the law on foreign investments of 1991. At present, this law has become invalid due to the adoption on July 9, 1999 of the new Law "On Foreign Investments in the Russian Federation" (No. 160-FZ), which entered into effective July 14, 1999. The Law “On Foreign Investments in the Russian Federation” contains a number of new definitions and provisions or clarifications that are not found either in the Model Agreement, but in the Agreements themselves (for example, the concept of “foreign direct investment” is clarified, the concept of “investment project”, “priority investment project”, etc.).

On the other hand, many of the provisions and conditions of already concluded Agreements are formulated much more broadly than in this law. This indicates that the drafting of the law did not take into account the positive developments in the field of foreign investment regulation. The law, in particular, did not take into account such successful provisions of the already concluded and ratified Agreements as the issue of compensation for damage to the investor in connection with the war, armed conflict, civil unrest. The law does not say anything about the application of the MFN regime, which excludes discrimination of investors on the basis of the country principle. It establishes provisions on the treatment of only the investor and profits, but does not single out separate provisions on the treatment of capital investment, as provided for in international practice.

Not only the Law “On Foreign Investments in the Russian Federation”, but also a number of other important laws currently contain contradictions to recognized international norms and rules, which the Russian side will have to eliminate if it joins certain international economic organizations or unions. For example, the Law “On Amendments and Additions to the Federal Law “On Production Sharing Agreements”” dated January 8, 1999, being in general a significant achievement in the development of Russian legislation on foreign investment, contains a number of provisions that contradict the conditions of TRIMs. At the same time, as noted above, in the Agreements between Russia and the United States, Japan and Kuwait, as well as in the ECT, the contracting parties assumed obligations to comply with these or similar norms.

Among the tasks, the solution of which is of key importance for increasing the effectiveness of the agreements being concluded, include the following.

Reasonable selection of counterparty countries. The bilateral nature of the Agreements determines their dual task, which is not only to create favorable conditions for the inflow of FDI from the respective countries, but also to protect the interests of Russian business in these countries. Thus, the selection criterion for counterparty countries should be both their investment potential and the interests of domestic investors in relation to investing capital in the territory of the respective countries and obtaining assistance in penetrating their markets. This primarily applies to countries where Russian companies are already investing or carrying out operations to create a distribution network and promote export goods on the market. In the future, new Agreements can be concluded with two categories of countries: 1)

countries from whose territory an influx of capital into the Russian economy can be expected in the next decade (Australia, Ireland, Israel, Singapore, Malaysia, Brazil, Saudi Arabia); 2)

countries that are actual and potential recipients of Russian FDI, as well as of interest in terms of foreign trade expansion of Russian companies (Iran, Morocco, Tunisia, Indonesia, Syria, Jordan, Yemen, Sri Lanka, Algola, etc.).

Development and adoption of a new text of the Model Agreement of the Russian Federation on the promotion and mutual protection of investments. This task is important not only due to the fact that the current Standard Agreement is somewhat outdated and does not regulate a number of issues important for investors, but also in connection with the ongoing adjustment of already concluded agreements and the preparation of new Agreements. basic principles development of a new Model Agreement should be: -

observance of the interests of Russia as a country - a recipient of capital and an investor country, taking into account the primary task of attracting FDI to the country; - taking into account changes in the legal framework and law enforcement practice in Russia; -

analysis and taking into account the experience of concluding the Agreements of Russia, as well as other developing countries and countries with economies in transition; -

taking into account and using the provisions of multilateral (including regional) investment agreements; -

ensuring multivariance in the preparation of the texts of the Agreements, allowing the use of flexible tactics for developing compromise solutions, taking into account the negotiating position of the counterparty countries.

In parallel with the development of the text of the Model Agreement, it is advisable to prepare a Methodological Regulation on the procedure for concluding and entering into force of Agreements of the Russian Federation on the promotion and mutual protection of investments, aimed at specifying and streamlining decision-making procedures related to ensuring the implementation of the concluded Agreements.

A procedural mechanism should be created to ensure a radical acceleration of the consideration and ratification of the agreements concluded in State Duma. Of the 53 Agreements concluded by Russia as of the beginning of 2001, only 38 were ratified, and a number of Agreements were in the State Duma for five years or more (in particular, the Agreements with the USA and Poland were submitted for ratification back in 1993) . This situation undermines the investment image of Russia and objectively prevents the creation of favorable conditions for a large-scale inflow of FDI from the respective countries.

There should be regular publication in Russian and English collection of texts of concluded and ratified Agreements.

International bilateral agreements on the protection of foreign investments. It is quite obvious that in currently the situation in the field of legal regulation of foreign investment is such that it is impossible to ignore the increased attention to the international legal aspect of this problem.

The Constitution of the Russian Federation fixed the provision that the principles and norms international law and international treaties of Russia are an integral part of its legal system, have direct effect and are subject to application by state bodies. The Law on Foreign Investments in the RSFSR establishes the priority of international law in the Russian Federation. Article 5 states that if an international treaty in force on the territory of the RSFSR establishes rules other than those contained in the legislative acts of the RSFSR, the rules of the international treaty shall apply. Many shortcomings of the Russian Law on Foreign Investment can be compensated for by the provisions of bilateral international treaties aimed at encouraging and protecting foreign investment.

Russia participates in more than ten such agreements as the successor of the USSR. Especially with regard to bilateral agreements on the protection of foreign investments, the Russian Foreign Ministry signed a note in December 1991, according to which Russia assumes the rights and obligations under international treaties concluded by the USSR, see Appendix. With regard to investors from countries with which bilateral agreements on mutual protection of investments have been concluded, the provisions on the investment regime established by these agreements will apply.

By guaranteeing favorable treatment for foreign investors, the state undertakes to ensure fair and equitable treatment of their investments and related activities.

The corresponding norm of the agreements expresses the desire of the state to encourage foreign investment, as well as to treat foreign investors favorably and non-discriminatoryly in terms of their rights to own, manage, dispose and liquidate investments. This obligation is contained in those provisions of the agreements where we are talking on granting foreign investors the most favored nation treatment or national treatment. Most favored nation treatment is mentioned in most agreements with Great Britain, Germany, Switzerland, Spain, Canada, France, Belgium, the Netherlands, Italy, Austria, Turkey, Korea, China, Finland. In the same time Soviet Union in a number of agreements concluded with France, Canada, Spain, Belgium, the Netherlands, and others, he undertook, in addition to the most favored nation treatment, to provide foreign investors, to the extent possible and in accordance with applicable law, with national treatment.

The national regime is directly stated in the agreements with the USA and Great Britain.

In the agreement with the Republic of Korea, the parties mutually provide the investor with the opportunity to choose the above two regimes, at the same time reserve the right to establish or maintain, in accordance with their current legislation, limited exemptions from the national regime of Art. 3 of the Agreement of December 14, 1990. The wording on this issue in the Treaty with the United States is more complicated. It defines national treatment as at least as favorable as the best of the most favorable treatment accorded by a party to state-owned enterprises, other companies or nationals of that party in similar circumstances. one . Analyzing the Treaty, one can come to the conclusion that national treatment is granted mutually with certain exceptions.

In addition, it is envisaged that Russian investments will be granted in any US state the same treatment that is granted to investments by US citizens living in other states.

The possibility of granting national treatment does not exclude the introduction of restrictions for a foreign investor to engage in certain types of activities. In addition, for some types of activities, a permit procedure may be established. Exemptions may be introduced in order to ensure national security and public order. In accordance with international practice, the implementation of certain types of activities may be declared a state monopoly, and then foreign investors will not be entitled to engage in them. In this regard, we can give an example from the legislative practice of Russia.

In pursuance of the Decree of the President of the Russian Federation of June 11, 1993 On the restoration of the state monopoly on the production, storage, wholesale and retail sale of alcoholic products, the Government of the Russian Federation adopted on April 22, 1994 the corresponding resolution. It stipulated that the state monopoly would be implemented through a system of measures that apply to enterprises engaged in relevant types of economic activity, regardless of ownership and departmental affiliation, including enterprises established in the territory of the Russian Federation with foreign investment.

At the same time, the national regime does not exclude the creation in certain cases of a preferential regime, the establishment of industries and types of production that are priority for attracting foreign capital.

In these areas, foreign investors may receive additional benefits. A feature of agreements on the protection of foreign investments is that they provide regulation not only of relations between the states parties to the agreement, but also relations with a foreign private investor of one of the states - parties to the agreement within the framework of the national system of law. The presence of such a heterogeneous subject composition may serve as a basis for resolving a dispute between the state and a private investor using general principles and norms of international law. This position is confirmed by the fact that the reference to the norms and principles of international law, as a rule, is contained in that part of bilateral agreements that concerns the procedure for resolving investment disputes.

It provides for the consideration of cases in international arbitration, which makes decisions based both on the provisions of a bilateral agreement and guided by the norms of international law.

At the moment, the problem of applying the norms of international law within the framework of the national system of law is the subject of discussion, and therefore its study requires careful analysis with the participation of international law specialists. No less significant when considering the issue of Russia's participation in international bilateral agreements on foreign investment is the definition of the concepts of nationalization and expropriation, which in bilateral agreements have a collective meaning, since these measures mean not only the act of nationalization itself, but also any other acts the result of which are forced withdrawal, alienation of investments, as well as state actions that can be considered as actually carried out nationalization or expropriation.

For example, freezing accounts, prohibiting the transfer of investments in foreign currency abroad, etc. Bilateral agreements prohibit such actions. In accordance with bilateral agreements, the nationalization of investments is recognized by the parties as legal, that is, it is not considered as a violation of the norms and principles of international law, if it is carried out in the public interest, in accordance with the procedure established by law and on a non-discriminatory basis.

The latter means that as a basis for taking action against a foreign investor, his nationality or state affiliation is not considered, if we are talking about a legal entity. At the same time, the recognition of acts of nationalization as legal may concern both acts of individual action, the nationalization of the property of a particular investor, and acts adopted in the course of restructuring the economy, the nationalization of entire sectors of the economy or categories of enterprises, for example, banks.

Bilateral agreements in the event of such a nationalization oblige the contracting state to pay the amount of compensation. The agreements also provide for the procedure for payment and the procedure for calculating the amount of compensation.

FORMS OF FOREIGN INVESTMENT SYSTEM OF ADMISSION OF FOREIGN CAPITAL Considering the issues of legislative regulation of foreign investments, it should be noted that at the moment it has become urgent to adopt a system for admitting foreign capital, which is confirmed by the successful practice of regulating this sphere of relations in countries with developed market economies. The Law on Foreign Investments in the Russian Federation provides for the implementation of foreign investments through equity participation in enterprises created jointly with legal entities and citizens of the Russian Federation, the creation of enterprises wholly owned by foreign investors, as well as branches of foreign legal entities, the acquisition of enterprises, property complexes, buildings and structures, participation shares in enterprises, shares, shares, bonds and other securities, as well as other property that, in accordance with the legislation in force in the territory of the Russian Federation, may belong to foreign investors; acquisition of rights to use land and other natural resources; acquisition of other property rights; prohibited by the legislation in force on the territory of the Russian Federation, including the provision of loans, credits, property and property rights. Art. 3 . The law provides for various forms of cooperation with foreign partners and attracting foreign resources, but at the same time, all regulation of foreign investment was practically reduced to establishing the procedure for registering a joint venture. This significantly narrowed the scope of the law and ultimately alienated a significant number of potential investors.

The subsequent appearance of certain legal acts For example, the Decree of the Council of Ministers of the Government of the Russian Federation of 10.07.93 providing for the attraction of foreign investments on the basis of a loan agreement with Deutsche Bank for the development of the Tyumen region, Decree of the President of the Russian Federation of 12.22.93. On issues of production sharing agreements in the use of subsoil, the practice of state bodies that register enterprises with foreign investment, in particular the Russian Agency for International Cooperation and Development, which previously carried out not only the registration of newly established enterprises with foreign investment, but also cases of their acquisition of shares of Russian joint-stock companies societies. indicates that in Russia there is an objective need for legislative regulation of not only the activities of joint ventures, but also other legal forms of foreign investment.

A certain role in attracting foreign investment is played by the creation of commercial organizations with 100 percent - 17 foreign participation.

Serious Western investors are currently interested not so much in partnership with Russian organizations how much the acquisition of reliable production control items. For the Russian economy, medium and small enterprises owned by foreign capital in sectors that are not of strategic importance are very useful.

But in a number of industries that are of key importance for the national economy, the creation of such organizations, especially large enterprises capable of taking over most of the Russian market, should be licensed by Decree of the Government of the Russian Federation N 1418 of December 24, 1994. A licensing system has been introduced in a number of industries regulation of economic activity, which also applies to foreign investors. In the context of increasing foreign investment in Russia, it becomes necessary to strengthen antimonopoly control in this area, primarily over the nature of mergers and acquisitions.

The Law of the Russian Federation On Amendments and Additions to the Law On Competition and Restriction of Monopolistic Activity in Commodity Markets dated May 25, 1995 applies to all business entities, and, consequently, to the operations of foreign firms. The investment legislation directly provides for the possibility of participation of foreign investors in the privatization of Art. 37 of the Law. When purchasing stakes in privatized enterprises owned by the state at investment tenders, foreign investors enter into sale and purchase agreements with the relevant property funds, which include certain investor guarantees, including for the preservation of the personnel of these enterprises, but most do not stipulate the sanctions of the Russian side if investors fail to fulfill these obligations.

Granting to foreign investors the rights to develop and develop natural resources and conduct economic activities related to the use of objects that are state-owned, but not transferred to enterprises, institutions, organizations for full economic management or operational management, is carried out on the basis of concession agreements, Art. 40 of the Law. The concessionaire receives the exclusive right to explore and extract natural resources at his own risk and at his own expense in the territory allocated to him.

He owns the products and is free to sell them after mandatory deliveries to the local market, the amount of which is stipulated in the agreement.

Under Russian subsoil legislation, concessions must be awarded on a competitive basis through tenders. Production sharing agreements are in many ways similar to concession agreements.

The difference lies in the fact that a foreign company that undertakes to develop the development of a certain natural resource pays the receiving party with a part of the extracted production, and a division of production is carried out. In this regard, a special tax regime is used, which provides for the replacement of taxes, duties and other obligatory payments by the distribution of manufactured products between the investor and the Russian Federation, the subjects of the Russian Federation. The considered relations are regulated by the Law of the Russian Federation on Production Sharing Agreements adopted in December 1995, which, however, does not comply with the Subsoil Law on very significant issues 1 on the nature of emerging rights contract or permission 2 payment for the use of subsoil 3 termination of agreements and licenses and much more.

The international practice of cooperation with foreign investors also knows such a form as the creation of contract joint ventures, while the Russian and foreign partner do not create a new legal entity. As an investment of capital, the conclusion of an agreement on joint activities of contractual joint ventures, and the provision of targeted long-term international loans, and the conclusion of such foreign trade transactions as technology transfer agreements, know-how, licensing, leasing agreements, etc. can be considered. In particular, the legislation of the European common market applies special criteria for evaluating foreign trade agreements for the transfer of technology, agreements related to the specialization and cooperation of production, agreements such as joint ventures.

The application to foreign trade transactions of assessments related to determining whether the purpose of concluding an agreement is the transfer of the right to control the activities of a person of a participant in a transaction, to his counterparty, means the use of a control criterion in order to make a decision on the admission of foreign capital.

Such a procedure is provided, for example, by the law on foreign investment in Canada. The mechanism for regulating the legislation on foreign investment should be aimed at assessing the contribution made by a foreign investor and the possible impact of the investment on the state of market relations.

As the experience of the adoption of laws on foreign investment in industrialized countries shows, the achievement of these goals is ensured with the help of a system of admission of foreign capital.

When implementing a system for admitting foreign capital, it seems appropriate to establish a procedure for registering investments, not a legal entity - a foreign investor, with its subjective rights, but directly the investments themselves.

This may include registration of the fact of making a contribution to the property of a newly created or existing enterprise, registration of the purchase of shares, registration of a foreign trade transaction for the import of equipment intended to be a contribution to an enterprise with foreign investment, a license agreement, etc. Registration of legal facts indicating receipts from abroad of material assets intended to become capital, i.e. to make a profit is the state regulation of investments, and the criteria according to which the relevant competent body of the state will decide on the admission of foreign capital should be clearly fixed in the legislation on foreign investments.

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The agreements define all types of property and intellectual values ​​that are recognized as investments and are allowed in accordance with the current legislation of the host state.

The Contracting States undertake:

Encourage and create favorable conditions for investment and related activities;

Provide adequate protection for foreign property;

Provide the investor with the opportunity to freely transfer their income in a freely convertible currency.

States agree to consider disputes with an investor on investment issues in international arbitration.

The agreements also contain conditions on providing a foreign investor with legal guarantees against political and non-commercial risks, guarantees of compensation in the event of nationalization, guarantees against currency inconvertibility, and against damage in the event of wars and revolutions.

International Bilateral Avoidance Agreements double taxation.

Such agreements usually deal with the following issues.

1. Income and property are determined, which are taxed without any restrictions in the country - the source of income. This is either in the country where the property is located, or in the country of permanent residence of the investor.

2. Establishes what income and property may be taxed in the source country with certain restrictions.

3. What income in the country - the source of income can be fully exempt from taxation.

In other words, these agreements delimit the right to levy taxes between the contracting states.

Double tax treaties provide for:

a) a specific way to achieve this goal (in Russia, for example, a tax deduction is applied for amounts paid by enterprises or citizens as taxes abroad);

b) the procedure for the mutual exchange of information between tax services;

c) territorial effect of the agreement, common terminology.

multilateral conventions.

The essence of the guarantees provided by the countries-participants of these agreements to their private entrepreneurs who invest funds abroad is as follows. The state - the homeland of the investor assumes the obligation, after the circumstances provided for by the system of guarantees, to receive appropriate compensation in the interests of its investor from the state-recipient of capital. Typically, the system operates when political risks occur, i.e. circumstances related to a change in the socio-economic conditions of management, nationalization or expropriation of the investor's property as a result of a war, revolution or uprising in the recipient country of capital.

After the state compensates for the damage to its exporter, this state acquires the right to demand the amount of compensation from the recipient state of capital.

The second group of documents regulating the activities of foreign capital in Russia includes basic regulatory acts of federal significance. Normative acts of the federal level (civil, tax, customs and other codes of the Russian Federation, laws on customs tariffs, on privatization, on JSCs and LLCs, on state regulation of foreign trade activities, etc.) are mostly not documents direct action. These acts mainly form the socio-economic environment in which foreign investors operate, fix the norm generally accepted in world practice, which ensures the prevalence of international treaties over the norms of domestic legislation.

Civil law mediates the relationship between enterprises with foreign participation and their numerous counterparties - this refers to various kinds of transactions, contracts, property rights, issues of representation, limitation of actions, etc.

Documents that directly regulate the activities of a foreign investor in Russia include federal laws, presidential decrees, government resolutions and orders, as well as regulatory legal acts of ministries and departments (instructions, orders, etc.), clarifying and clarifying articles and provisions laws, decrees and regulations.

First of all, the Federal Law of July 9, 1999 “On Foreign Investments in the Russian Federation” refers to special legislation. Currently, it regulates relations related to guaranteeing the rights of foreign investors in the implementation of investment activities in the real sector of the Russian economy. It defines the term "foreign direct investment", introduces the concept of "priority investment projects", and lists the guarantees that foreign investors can count on. However, compared with the law of 1991, the number of benefits granted to a foreign investor in the new law has been reduced. Benefits are provided only to enterprises implementing priority investment projects, but for a period not exceeding 7 years from the date of commencement of project financing.

It should be noted that new law on foreign investment gives the right to the constituent entities of the Russian Federation to adopt laws and other legal acts regulating foreign investment. The first Law of the RSFSR on foreign investment did not give such a right. Specific legal acts of the constituent entities of the Russian Federation in the field of foreign investment regulation can be reduced to the provision of tax and other benefits at the local level and other similar issues.

The fourth group of laws consists of normative acts regulating investment activity in the regions. V last years in a number of constituent entities of the federation, regional legislation has been adopted and is in force, contributing to the improvement of the local investment climate and including exemption from regional taxes, subject to certain conditions by investors (deferred tax, rent and other payments, as well as the provision of interest-free loans and various guarantees of local authorities, etc.) .

An important component of the system of international regulation of financial flows is the protection of investments and mechanisms for settling investment disputes. The most common form of such protection is bilateral investment agreements and agreements for the avoidance of double taxation of property and income. Important role guarantees to foreign investors also play, which can be provided by both international (Multilateral Investment Guarantee Agency) and national institutions.

It is clear that in practice contradictions very often arise between investors and countries of location. To solve them, appropriate procedures and institutions such as the International Center for the Settlement of Investment Disputes are being created.

Bilateral investment agreements

Bilateral investment agreements constitute by far the most important instrument for the international protection of foreign

1 These and other points concerning the Agreement on Trade-Related Investment Measures are described to death in the textbook by Sergei Osyka and Valery Pyatnits-or "The World Trade Organization" (K., 2001, ch. 20, 21).

investment. The first bilateral investment agreement was concluded by the Federal Republic of Germany and Pakistan on November 25, 1959. But the agreement between the Dominican Republic and the Federal Republic of Germany was the first to be ratified.

By the end of 1999. There were +1857 such agreements, and the most active such agreements were concluded in the 1990s, when their number increased by 4 times. At the same time, it should be noted that 737 (40%) transactions were concluded between developed countries and developing countries; 476 (26%) - between developing countries; 253 (14%) - between developing countries and countries of Central and Eastern Europe; 104 (6%) - between the countries of Central and Eastern Europe. It should be noted separately that only 11 bilateral investment agreements have been concluded between developed countries. This is explained by the fact that the relations of this group of countries in the field of investment are regulated by various OECD instruments.

At first, bilateral investment agreements were concluded between developed countries and developing countries. At the same time, a developed capital exporting country signed an appropriate agreement with a developing country that imported capital in order to provide additional and higher standards of protection for its investors compared to those determined by national law. For their part, developing countries signed such agreements in order to create a more attractive investment climate and attract foreign investment.

In the late 1980s, the pattern of concluding bilateral investment agreements began to change: such agreements began to be quite actively concluded between developing countries and countries with economies in transition. Thus, now the division into countries-exporters and countries-importers of capital is actually blurred. In many cases, countries, through bilateral investment agreements, seek both to protect their investors abroad and to attract foreign investment in national economy. Of course, in different bilateral investment agreements, partners differently assessed the importance of achieving each of the two goals mentioned.

Obviously, each bilateral investment agreement has its own characteristics, but, as the analysis of the entire array of such documents shows, they usually have seven basic components4.

I. Scope of application. The scope of application of investment agreements depends on the definition of "investment" and "investor", which are subject to this agreement and receive appropriate protection. In the transactions of the establishment, the moment of entry into force of the document and the period (time) of its validity are glued together. As a rule, the parties agree that the agreement enters into force one month after the exchange of the relevant instruments

* This methodology for analyzing bilateral investment agreements was developed by the International Center for Settlement of Investment Disputes.

ratification and is valid for 10 years, with the possibility of extending the term of the agreement in accordance with the procedures determined by the parties.

It should be noted separately that, in contrast to traditional practice, in Lately bilateral investment agreements apply not only to investments that came into the country after the ratification of this agreement, but also to those made earlier.

2. Provisions governing the right to invest in the territory of a given country (admission clause). In this case, we are talking about the regulation of investments and actions of investors of one side of the transaction in the territory of the other side. Investment agreements in force today provide for two approaches to the investment regime.

The first approach is that the parties agree on the mutual provision of national treatment (national treatment) or most-favored-nation treatment (most-favored-nation treatment) both at the investment stage and in the post-investment period.

At the same time, another procedure is also possible, according to which the national treatment or the most favored nation treatment is granted only in the post-investment period.

3. Investment activity regime (treatment clause). This component of the investment agreement determines the regime of investors' activity, which is applied from the moment of investment in the territory of the respective country. Most investment agreements provide for the application of five basic standards in the field of investment regulation, namely:

Fair and equal treatment of investors and investments;

Protection and security of investments and investors;

NEDIS Crimea and nation;

National treatment;

Most favored nation treatment (and possible exceptions to these regimes) *.

It should also be noted that the investment activity regime may contain certain requirements for foreign investors (for example, the requirement of local content, the requirement to restrict imports, etc.). However, today such requirements are considered discriminatory, and therefore many bilateral investment agreements explicitly prohibit their application to investments and investors.

Most investment agreements also provide that, in the event of losses due to war, revolution, emergency, civil strife, foreign investors are guaranteed no less favorable treatment for the restitution, reimbursement and compensation of such losses than that granted to domestic investors or investors from third countries.

4. Provisions governing the procedure for settlements (transfer clauses). As a rule, all investment agreements contain provisions on guarantees to investors about the freedom of settlements associated with investments. At the same time, the agreement may contain both a list of relevant operations and warnings about the provision of a certain guarantee for other operations that were not included in the list.

With regard to the settlement currency, most agreements provide for the use of a freely convertible currency. At the same time, transactions may provide for appropriate settlement guarantees both in the currency in which the investment was made, and in any currency. Such settlements shall be made on the basis of the normal exchange rate on the day of the relevant transaction and without delay.

In this regard, it should be noted that individual agreements may also provide for certain limitations or exceptions to these transactions or contain a provision that all settlements must be carried out in accordance with the laws of the country in which the investment takes place.

5. Expropriation. In accordance with generally recognized international legal norms, bilateral investment agreements contain provisions that, in general, directly prohibit the expropriation of investments, but at the same time clearly define the conditions under which such expropriation is possible. As a rule, agreements allow for the expropriation of investments in the public interest, in accordance with the law and subject to payment of compensation.

6. Settlement of disputes between the parties to the transaction. As a rule, bilateral investment agreements provide for a dispute resolution procedure between the parties. Such a procedure usually includes preliminary consultations between the parties in order to resolve the dispute, and if such an attempt fails, the parties turn to arbitration.

7. Settlement of disputes between the party to the transaction and the investor. Such disputes are called investment disputes and are subject to resolution by an arbitration court (arbitration), and each transaction may provide for its own specific arbitration procedure. In many cases, agreements contain provisions for the settlement of investment disputes in accordance with the Convention on the Settlement of Investment Disputes between Countries and Nationals of Other Countries, or in accordance with the Additional Rules for the Settlement of Disputes, if a certain country is not a party to the said Convention.

As in the previous case, the agreement provides that the appeal to the arbitration court should be preceded by consultations with the aim of pre-trial resolution of the problem.

An important element of the system of regulation of financial flows is an agreement on the avoidance of double taxation of income and capital. Such agreements are usually based on the OECD Model Tax Convention (OECD Model Tax Convention). Today, approximately 350 such agreements have been concluded between OECD member countries, and in the world the Convention model has been used in the development of more than 1,500 agreements and conventions for the avoidance of double taxation. This fact indicates that the corresponding recommendations of the OECD turned out to be quite successful, and now they are also widely used by countries that are not members of this organization.

In short, the model provides guidance on the distribution of tax rights between the country in question and the investor resident in that country, with the country doing its best to eliminate conditions that lead to a conflict of taxing powers.